Privacy right would not enable abortion

Amend the Constitution to include a right to privacy, Daniel Koffler argues (“Right to privacy should be enumerated,” 11/9), and abortion rights for American women will be unequivocally guaranteed. His argument is flawed: A privacy amendment would not guarantee a right to abortion.

Koffler argues that if one grants that a fetus is not a person and the Constitution guarantees a right to privacy “It follows … that state regulation of a part of a person’s body that itself bears no rights is an unconstitutional violation of privacy.” Unfortunately for Koffler, this reasoning is unsound. His argument is missing a needed premise — something like “the state may only force a person to refrain from an activity when the activity implicates the life or constitutional rights of another person.”

Now, is this premise true? Need the state justify its every infringement on liberty by pointing to a potential murder the infringement would prevent? The answer is obviously no. For example, the Constitution guarantees me the right to political protest, and cats certainly aren’t people (nor do they possess constitutional rights), but the state can unquestionably prohibit me from setting my cat aflame in protest of a tariff on cat food. If this doesn’t do it for you, substitute “post office” for cat.

As I understand him, though, Koffler is a libertarian first and an abortion activist second. “If my proposed amendment does not guarantee a right to abortion,” Koffler might respond, “so much the worse for a right to abortion. The state still should not be permitted to regulate private conduct.” I believe Koffler is mistaken on this point as well.

Judges could protect privacy from frivolous regulation, but states never infringe upon privacy without purpose. Any legislative decision to intrude on privacy inevitably involves a choice of evils. Such an intrusion entails the infliction of suffering for reasons whose sufficiency may be open to question — not the infliction of suffering that can be fairly labeled needless. In light of this, what standard should the court use to determine whether the state’s reasons for infringing privacy are sufficient?

Notice how Koffler’s mistaken view of Roe v. Wade bears on this issue. So long as the only possible argument for restricting abortion relies on implausibly defining a fetus as a person, it is reasonable to label such a restriction frivolous. One might then argue that the statute in Roe is an example of a purposeless infringement the court should void.

But since a whole host of plausible views about the moral status of the fetus could support varying degrees of abortion regulation, it is impossible to label statutes like the one in Roe frivolously invasive. In Roe, the court ruled that no possible good that could come from anti-abortion legislation could justify infringing upon the life plans of the mother. This is an understandable conclusion, and one with which I agree, but it is reached by balancing two legitimate costs.

Judges could enforce a right to privacy, but only by applying a standard as vague as “is the potential good this law will bring about enough to justify its invasiveness?” This is the fundamental problem with Koffler’s proposed amendment — it would give the judiciary a blank check to second-guess all legislative balances. In a democracy, the task of determining a law’s prudence belongs to the legislature and the task of correcting legislative error to the voters. Assuming that unelected, unaccountable judges are better suited than legislatures to discern the correct balance between social welfare and personal privacy flies in the face of our democratic values. As John Hart Ely aptly put it, “our society did not make the constitutional decision to move to near-universal suffrage only to turn around and have superimposed on popular decisions the values of first-rate lawyers.”

At first, it might seem that my argument proves too much. Where in my seemingly blind faith in the democratic process is there room for judicial review at all? Courts exist not to make substantive moral decisions, but to step in when our representatives are attempting to subvert the ballot box as a check on undesirable legislation, for example by silencing dissent in order to ensure their incumbency. Put another way, an unelected judiciary ought to be responsible only for safeguarding the political process, rather than ensuring that the process produces desirable results.

Constitutional provisions concerned with substantive matters have a poor track record in America. The demise of prohibition and slavery are the most dramatic pieces of evidence that the Constitution exists to safeguard legitimate processes, not legitimate outcomes. I like my privacy as much as Dan Koffler likes his, but amending the Constitution is not the way to ensure its protection.